Scanlon v. Boston & A.R. Co.

• Decision Date: 19 October 1888
• Citation: 18 N.E. 209,147 Mass. 484
• Parties: SCANLON v. BOSTON & A.R. CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

147 Mass. 484

18 N.E. 209

SCANLON v. BOSTON & A.R. CO.

Supreme Judicial Court of Massachusetts, Worcester.

October 19, 1888

COUNSEL

W.S.B. Hopkins, for plaintiff.

Frank P. Goulding, for defendant.

OPINION

W ALLEN, J.

The danger--the risk of injury which it is claimed that the plaintiff assumed--was not the particular danger from the post which caused the injury, but the general danger from structures and erections near the track. The plaintiff had no actual knowledge of the danger, and he cannot be held to have assumed the risk of it unless the character of the danger and the circumstances are such as to show that he ought to have known and appreciated it. The fact that it was incident to the employment is not sufficient. Danger from dangerous machinery or appliances or structures is incident to employment upon them, but the risk is not assumed by the employe unless he knows the danger, or unless it is so obviously incident that he will be presumed to know it. The danger in this case was not from objects casually or accidentally near the side of the car, but from permanent erections maintained near the track by the defendant. The circumstances are not such that the plaintiff will be presumed to or ought to have known of the danger. He did not know that there were erections so near the track as to endanger him. Such erections were in fact few and exceptional. Within 15 miles of Boston there were three signal-posts, one telegraph pole, and three bridges and abutments. It does not appear whether there were any others upon the road. It was the plaintiff's first trip as brakeman. He was unfamiliar with the road and with the running of trains, and was not informed that there was any such danger, or in any way cautioned in regard to it; and he had no reason to know that there were permanent erections so near the tracks as to make it dangerous for him to be upon the place on the car which was provided by the defendant. Lovejoy v. Railroad Co., 125 Mass. 79, was a case in some respects very similar to this. An engineer, leaning out from the cab of his engine, was struck by a signal-post. The post was one of a series equally distant from the track. The abutments of 46 bridges, and numerous buildings, station entrances, and other structures on the line of the railroad, were as near to the track. And these facts were known to the plaintiff. The court say: "If there was any danger to the plaintiff while in the performance of his duties from the structures thus placed it was a risk he had assumed. He knew the manner in which the road was constructed, and the proximity to the track of these structures, and the methods employed in the management of the trains. The defendant had the right to construct its roads and conduct its business in...